Collective Agreement No. 3 of 2018: Providing for compulsory inquiries by arbitrators in cases of disciplinary action against educators charged with sexual misconduct in respect of learners;

Collective Agreement No. 4 of 2018: The appointment and conversion of temporary educators to posts on the educator establishment.

The three agreements not only gives effect to the mandate of the Council to maintain labour peace in the public education sector, but also seeks to fulfil the vision of the National Development Plan in terms of basic education to improve the conditions of service of educators, and in terms of Collective Agreement 3 of 2018, uphold the Constitutional rights of the child.

The purpose of the agreement is to amend measures regarding the re-appointment of educators after a break in service, as contained in paragraph B 8.5.2 and B 8.5.3 of the Personnel Administrative Measures (PAM).

Paragraph B 8.5.2 of the PAM addresses the re-appointment to the same post level after a break in service. The current practice, as outlined in the PAM, is that an educator who had a break in service and is re-appointed to the same post level, must be re-appointed to the same salary level (or equivalent salary position) occupied before the break in service.

Paragraph B 8.5.3 deals with the re-appointment to a lower post level/principal post on a lower grade after a break in service. Which directs that the salary of an educator who is re-appointed after a break in service to a lower post level, must be decreased to at least six notches (6%) for each post level that his/her post level was higher before the break in service.

Collective Agreement No. 2 of 2018 states that an educator who is appointed after a break in service shall always be appointed to the entry level salary notch code of the post to which he/she has been appointed.

Exceptions to this amendment will apply when an educator who resigns or retires re-enters the system at the same level and has more than six years of uninterrupted service in the same post, such an educator shall be awarded six additional notches to the entry notch on which he/she is appointed. Years of actual experience will also be considered for promotion purposes.

The same applies when an educator re-enters the system on a lower post level. If the educator has more than six years of uninterrupted service on any post level, such an educator shall be awarded an additional six notches to the entry notch of the applicable post.

The amendments seek to regulate the re-appointment of educators after exiting the system and provide some financial relief, as the current provision places a strain on the country. The agreement will serve as a deterrent to the perceived abuse of the system.

This is against the backdrop of the extensive media reporting on pension laws reforms, which alleged that thousands of anxious educators exited the education system in 2015 and cashed in their pensions. This was as a result of misinformation around pension reforms.

Collective Agreement No. 3 of 2018: Providing for compulsory inquiries by arbitrators in cases of disciplinary action against educators charged with sexual misconduct in respect of learners

A number of special disputes referred to the ELRC involve learners, either as victims of sexual misconduct or witnesses. In order to safeguard the rights of children involved in cases of sexual misconduct where they are either victims or witnesses. Collective Agreement No. 3 of 2018 provides for a singular process that will ensure that these children are not exposed to secondary trauma.

There are currently three platforms available to learners who are victims of sexual misconduct or witnesses, these are: the Provincial Department of Education’s internal disciplinary hearing processes; the SACE investigative process where the child is also required to testify; and the ELRC arbitration process, in the event that the teacher refers a dispute to the Council. The learner is required to testify in all three processes and relive the trauma.

As learners are required to lead evidence, the Council is faced with a grave challenge when both learners and parents are reluctant to testify afresh due to the fact that they have to present the same evidence about the same events in several hearings, exposing them to unnecessary mental trauma. Consequently, the Employer is unable to prove its case and the alleged perpetrator is reinstated into the system by default, due to lack of evidence.

Only arbitrators with sufficient experience in hearings involving minor children as witnesses and victims, will be appointed to deal with these special cases. Intermediaries will also be appointed to aid the child victim or witness to give evidence.

The judgement of an arbitrator in terms of the collective agreement shall be final and binding and has the same status as an arbitration award under the Labour Relations Act.

With the current scourge of sexual crimes, particularly against children in our country, this agreement would be instrumental in ensuring that justice prevails in cases where educators are accused of sexual misconduct involving children.

As a quasi-judicial body, the ELRC has an obligation to fulfil its broader mandate ensure that the principle of fairness is applied, as provided for in the Labour Relations Act (LRA), as well as the best interests of the child as enshrined in section 28 of the Constitution of the Republic of South Africa.

This agreement will ensure that this dual responsibility is realised.

Collective Agreement No. 4 of 2018: The appointment and conversion of temporary educators to posts on the educator establishment

The purpose of the agreement is to regulate the appointment of temporary educators to posts on the educator establishment of public schools and provides for the employment security of temporary educators.

The permanent appointment of temporary educators has been a contentious issue that has been the cause of disputes in selected provinces over the years. The conclusion of this agreement is thus a historic achievement for public education and is in line with the 2015 amendments to the LRA and the courts’ interpretation of the same.

Annexure A of the agreement sets out the procedures for appointing temporary educators to a funded, substantive and vacant level 1 post at a public school. The agreement will also take precedence over all existing provincial agreements regulating the appointment and conversion of temporary educators, except for where the provisions in existing provincial agreements provide for more favourable conditions to those contained in the national agreement.